from the those-without-common-sense-will-inherit-the-earth dept

Time and time again, courts remind officers of the law don't actually have to know the law to enforce the law. Yes, that's how it all works out for citizens, who are just as frequently reminded ignorance of the law is no excuse. This has lead to the prevalence of pretextual stops where minor traffic violations (that may not even be violations) are used to initiate long conversations with law enforcement officers with the end goal of obtaining consent for a search or to bring a drug dog onto the scene.

Qualified immunity, along with the good faith exception, have allowed an untold amount of law enforcement abuse. This has completely skewed judicial perception, turning law enforcement into noble fools and raising expectations of citizens' legal knowledge to that of seasoned criminal defense lawyers. Here's how occasional Techdirt contributor Andrew Norton breaks down the current state of judicial affairs:

2005, when [Tasers] were still being introduced to law enforcement at large, was a bad year for taser-victims, but not cops. In a California case, Bryan v. McPhearson, the court decided the officer’s actions qualified under the doctrine of qualified immunity (cops will only be responsible for excessive force if they act in a way that is so unreasonable any cop would have known such conduct was against the law – basically acting criminally) Since ‘the law on taser police brutality’ was still evolving when the incident happened in 2005 the cop should get a break from liability. You read that right, because no-one had told the cop, he didn’t have any notion of right and wrong. Ignorance is an excuse, if you wear the badge.

It’s this that characterizes many police brutality and excessive force cases. On one hand the police officers are professionals dedicated to knowing and enforcing the law, when they’re on the prosecuting side, their word is solid and their testimony is unquestionable. However if they’re a defendant, they’re amateurs who don’t know the law, can’t tell right from wrong, and whose training and instincts are so poor, that they can’t be held responsible for decisions made when doing their job because they have to do them quickly.

That's the ugly reality. Things that seem obvious to citizens are somehow inscrutable to police officers with years of legal training and, quite often, a degree in criminal law. Yet another "case in point" is this recent Fourth Circuit Appeals Court decision, in which something that seems obviously wrong is given a judicial hand-wave because the obvious wrong had not been "clearly established" by these judges in this circuit dealing with a carbon copy of these circumstances.

The civil rights lawsuit involves a minor who was in fourth grade at the time the violation occurred. E.W. is the minor suing. A bus surveillance camera caught her and another student fighting on the bus. Both were suspended by the school from riding the bus.

For whatever reason, the school didn't do anything about the altercation for 72 hours. Then they called in deputy sheriff Rosemary Dolgos, the school's resource officer. Dolgos questioned the other party in the fight and asked if she was injured. A.W. (the other minor in the altercation) showed the officer a couple of small bruises on her leg.

E.W. was summoned to the office. According to the deputy, E.W. didn't seem to care enough about the fight on the bus. From the opinion [PDF]:

Dolgos attempted to emphasize to E.W. the seriousness of the situation and the possible repercussions, telling her that adults could be jailed for such behavior. Still, in Dolgos’s opinion, “E.W. continued to act as if the situation simply was not a ‘big deal.’”

It wasn't a big deal. Or at least it wasn't something the school couldn't have handled without a law enforcement officer. But since a law enforcement officer was involved, law enforcement proceeded without any regard for the actual severity of the situation. Deputy Dolgos, presiding over an apathetic fourth grader, feared for her safety.

Dolgos placed E.W. in handcuffs from behind and reseated her. Dolgos inserted two fingers between the handcuffs and E.W.’s wrists to ensure that they were not too tight. In her affidavit, Dolgos stated that she was concerned about the physical safety of herself and the school administrators because of both the incident she observed in the surveillance video and E.W.’s apathy. Dolgos expressed concern in the affidavit that E.W. might act violently against her or someone else if she attempted to walk E.W. from the school to her patrol car.

Dolgos based these observations on her lack of knowledge.

Dolgos also admitted, however, that she had no idea whether E.W. had “any past or current behavioral issues or past involvements with law enforcement.”

She also likely could have controlled the situation without handcuffs, especially considering E.W.'s apparent compliance.

According to Dolgos, E.W. stood 4’4” and weighed about 95 pounds, while Dolgos stands 5’4” and weighs 155 pounds.

Once placed in handcuffs, E.W. began crying and apologized for the fight. She said she did not want to go to jail and promised she wouldn't hit A.W. again. Apparently this was the reaction Dolgos was looking for. Having been taken seriously enough as a law enforcement officer, Dolgos removed the cuffs and released E.W.

The school, however, remained unmoved. It contacted E.W.'s mother and told her they would refer the matter to juvenile services. E.W.'s mother responded with disbelief ("[s]o you're going to put my… daughter in the system when she's 10?") and came to the school to retrieve her daughter. The lawsuit followed.

The district court took a brief glance at Dolgos' motion to dismiss and sided with the deputy. The decision was, at best, perfunctory.

In a short paragraph, without citing any case law, the district court concluded that Dolgos’s actions did not amount to excessive force because E.W. was handcuffed for only two minutes and then released to her mother. The court further concluded that Dolgos was “at least” entitled to qualified immunity as to the § 1983 claim.

The appeals court disagrees with the will-this-do assessment of the lower court. It finds the use of force excessive, considering the surrounding circumstances. In doing so, it finds Dolgos' assertions ridiculous.

Here, Dolgos could not have reasonably believed that E.W. presented any immediate risk of harm to anyone. Like the adult suspect in Solomon, E.W. had no weapons and made no threats, see 389 F.3d at 174, and like the eleven-year-old in Sonora, she was calm and compliant as Dolgos spoke to her, see 769 F.3d at 1030. In fact, Dolgos recognized that E.W. appeared calm. See J.A. 23–24. Also similar to the suspects in Solomon and Sonora, E.W., at 4’4” and ninety-five pounds, was quite small relative to Dolgos, the arresting officer, who was a foot taller and sixty pounds heavier. See Sonora, 769 F.3d at 1030; Solomon, 389 F.3d at 174. Not to mention, E.W. was in a closed office and surrounded by two school administrators and a deputy sheriff. Given these facts, E.W. posed little threat even if she were to become aggressive.

The significant time that had elapsed—without incident—since the fight on the bus further negates any notion that E.W. posed an immediate threat. While the scuffle took place on Tuesday, January 6, East Salisbury Elementary School waited three days to even contact Dolgos. In the interim, E.W. was allowed to and did in fact attend school without incident, indicating that she did not pose a risk to the children around her, much less to the adults.

In addition, the ignorance of the underlying circumstances Dolgos admitted to (and likely hoped would weigh in her favor by making her unreasonable actions reasonable) only further adds to the factors weighing against handcuffing a compliant 10-year-old.

Moreover, Dolgos had no reason to think that the scuffle between E.W. and A.W. was anything but an isolated incident. E.W. had no prior behavioral issues or involvement with law enforcement, nor did Dolgos have any indication that she did. The use of force is an intrusion on Fourth Amendment rights, and an officer must have a reason for using or escalating force. See Graham, 490 U.S. at 396 (intrusions on Fourth Amendment rights must be reasonably necessary given countervailing governmental interests). Even as to the altercation on the school bus, E.W., while unjustified in retaliating, did not become violent without physical provocation by A.W. Indeed, even a child with a history of attacking school officials should not be handcuffed if, at the time of handcuffing, she did not present a danger.

The appeals court also points to plenty of precedent, finding that handcuffing children tends to be excessive force in almost any situation. It also notes that the use of handcuffs in a school setting tends to undermine the mission of schools and school personnel. Students who see other students handcuffed for behavior that could be addressed by parental or school discipline are far more likely to distrust school administration and will be less likely to bring disciplinary issues to their attention. In extreme cases, parents and students may decide to take their scholastic business elsewhere, leaving the school with fewer students.

The court finds Deputy Dolgos violated the Fourth Amendment.

Dolgos took a situation where there was no need for any physical force and used unreasonable force disproportionate to the circumstances presented. We therefore find that Dolgos’s actions amount to excessive force. As such, E.W. has demonstrated a violation of her constitutional rights under the Fourth Amendment.

But here's where it all goes haywire. The court lists numerous reasons -- including circuit precedent -- why Dolgos should have known handcuffing children (absent extreme circumstances) would result in Fourth Amendment violations. It holds that this handcuffing was a Fourth Amendment violation. And then it goes on to declare that Dolgos can rely on her ignorance and her complete lack of better judgment to escape liability.

Conversely, it was not obvious that Dolgos could not handcuff E.W. here. Although precedent supports the conclusion that Dolgos acted unreasonably and violated E.W.’s Fourth Amendment rights, it did not put Dolgos on sufficient notice that her conduct was unlawful. Indeed, this Court previously stated that the use of handcuffs would “rarely” be considered excessive force when the officer has probable cause for the underlying arrest. See Brown, 278 F.3d at 369. And the parties do not point us to any controlling authority sufficiently similar to the situation Dolgos confronted. In fact, E.W. chiefly relies on Graham to define the clearly established law. Without more, we cannot conclude that it would have necessarily been clear to a reasonable officer that handcuffing E.W. would give rise to a Fourth Amendment violation.

This will help handcuffed students in the future, but it does nothing for E.W. And this conclusion comes after a lengthy diversion in the opinion in which the concurring opinion is called out for its willingness to say that handcuffing children reasonable.

The concurrence seems to suggest that elementary school children like E.W. are so inherently unpredictable and uncontrollable that officers would be reasonable in restraining them for our collective safety. Unsurprisingly, the concurrence’s authorities do not actually support that position or apply to this case. The concurrence cites to Knox Cty. Educ. Ass’n v. Knox Cty. Bd. of Educ., 158 F.3d 361 (6th Cir. 1998), for the proposition that young children are “unpredictable, in need of constant attention and supervision,” such that “[e]ven momentary inattention or delay in dealing with a potentially dangerous or emergency situation could have grievous consequences.” Post at 41 (quoting Knox, 158 F.3d at 378). What the concurrence leaves out is that Knox was discussing whether teachers may be required to undergo drug-testing in order to protect young children, who “could cause harm to themselves or others while playing at recess, eating lunch in the cafeteria (if for example, they began choking), or simply horsing around with each other.” See 158 F.3d at 378–79. Unless the concurrence suggests that we handcuff children as a reasonable method of “supervision” to prevent choking and horseplay, Knox has little relevance to the case at hand.

So, the concurrence is only right so far as it agrees with the rest of the court that Deputy Dolgos can walk into a school office and slap handcuffs on a ten-year-old without having to worry about being held liable for violating the student's Fourth Amendment rights. On all other points, it's somehow wrong, but only because it chose the wrong standard of law enforcement ignorance to cite. The concurring opinion somehow manages to be worse than the majority opinion, because it wouldn't even go so far as to establish the handcuffing of compliant prepubescents as "unreasonable."

This is a good decision as far as establishing a baseline goes, but the cases cited suggest the baseline had already been set, but only as to eight-year-olds (James v. Frederick Cty. Pub. Sch.) and eleven-year-olds (Tekle v. United States). Ten-year-olds are apparently in need of their own separate precedent. This is how much the doctrine of qualified immunity has erased the word "justice" from the justice system. Anyone who suffers a Fourth Amendment violation had better hope someone in exactly the same circumstances landed a appellate unicorn with their lawsuit, or law enforcement skates away with another win and a very slight narrowing of the scope of civil rights violations officers can get away with.

from the don't-be-evil dept

We had just been talking about Instagram and YouTube facing site blocks in Russia all because a billionaire didn't like his dirty laundry exposed online. For brief background, a noted Russian dissident, Alexy Navalny, had published photos of billionaire Oleg Deripaska and Deputy Prime Minister Sergey Prikhodko relaxing on a yacht with a young woman variously described as a model and escort fawning over them. Importantly, the salacious nature of the photos and videos is only half of the reason Navalny is drawing attention to them. The other reason is his accusations of corruption in government, as a massively wealthy oligarch consorts in this fashion with a high-ranking member of the federal government. Despite that, or perhaps because of it, Russian courts had handed Deripaska a legal victory and ordered sites hosting the images, including Instagram and YouTube, to take them down. Russia's notoriously corrupt site-blocking agency, Rozcomnadzor, issued an edict that the images be removed or the sites would face a potential full block in Russia.

A spokeswoman for Facebook would not discuss the specifics of the case but confirmed that it had decided to comply with Roskomnadzor's demands.

"When governments believe that something on the internet violates their laws, they may contact companies and ask us to restrict access to that content," she said. "We review such requests carefully in light of local laws and where appropriate, we make it unavailable in the relevant country or territory. We are transparent about any content restrictions we make for government requests with local law in our Transparency Report."

Let's be clear about what happened here. A political opponent of the current Russian regime posted embarrassing photos showing both a potentially salacious act with a young woman and, more importantly, a potentially inappropriate relationship between government and a wealthy businessman. Whatever level of transparency Facebook desires to have on this matter, the simple fact is that an American company has chosen to bow to what certainly seems like pure political censorship. Whatever the privacy concerns Deripaska may have raised in court, it should be clear to anyone that similar pictures of some every-day person in Russia would not have been treated with so heavy a hand. This all looks to have been done to avoid political embarrassment above anything else.

And, so, now all eyes turn to Google.

Its response contrasts with that of Google's YouTube service. It had been ordered to block several clips before the end of Wednesday. But it has taken no such action.

Will Google cave as well? If I were to bet on the matter, that seems an outcome at least as likely as any other, but the company certainly shouldn't give into such demands. And, frankly, if any company has the power to get into a staring contest with the Russian government, it's Google. Whether it has the backbone for it remains to be seen, but I would guess there would be far too much backlash over a full block of YouTube in Russia to be worth the government blocking the site in full.

And, again, it's just not a good look to have an American company support this kind of corruption and censorship. It's a shame Facebook couldn't find its stance on the matter, but perhaps Google can do better.

While many are trying to position the indictment as a "significant" bit of news, I have to admit to being a bit underwhelmed. It really does not reveal much that wasn't already widely known. It's been widely reported that the Russians had interest in disrupting our democracy and sowing discord, including setting up and pushing competing rallies from different political sides, and generally stoking fires of distrust and anger in America. And... the indictment seems to repeat much of that which has already been reported. Furthermore, this indictment actually reminds me quite a bit of a similar indictment four years ago aginst various Chinese officials for "hacking" crimes against the US. As we noted then, indicting the Chinese -- who the US would never be able to arrest anyway -- just seemed to be a publicity stunt, that had the potential to come back to haunt the US. It kinda feels the same here.

What is interesting to me, however, is that the indictment also demonstrates why all the hand-wringing against Facebook, Twitter and Google seems kind of misplaced. For months we've been seeing big articles and Congressional hearings questioning why the platforms allowed the Russians to use their services as propaganda tools -- even getting the companies to recently send out (useless, confusing) announcements to people about whether or not they saw or reposted Russian troll propaganda. But what the indictment makes pretty clear, is that the Russians made it nearly impossible for an internet service to ferret them out. The money used was spread out among many different banks and laundered through various means to make it more difficult to trace back. And it details just how far the trolls went to appear to be Americans, including traveling to the US, posing as Americans online to talk to actual US activists and push them in certain directions. And, of course, confusing the internet platforms into thinking they were Americans:

ORGANIZATION employees, referred to as "specialists," were tasked to create social
media accounts that appeared to be operated by U.S. persons. The Specialists were divided into
day-shift and night-shift hours and instructed to make posts in accordance with the appropriate
U.S. time zone. The ORGANIZATION also circulated lists of U.S. holidays so that specialists
could develop and post appropriate account activity. Specialists were instructed to write about
topics germane to the United States such as U.S. foreign policy and U.S. economic issues.
Specialists were directed to create "political intensity through supporting radical groups, users
dissatisfied with [the] social and economic situation and oppositional social movements."

Defendants and their co-conspirators also created thematic group pages on social media
sites, particularly on the social media platforms Facebook and Instagram. ORGANIZATION-
controlled pages addressed a range of issues, including: immigration (with group names including
"Secured Borders"); the Black Lives Matter movement (with group names including
"Blacktivist"); religion (with group names including "United Muslims of America" and "Army of
Jesus"); and certain geographic regions within the United States (with group names including
"South United" and "Heart of Texas"). By 2016, the size of many
groups had grown to hundreds of thousands of online followers.

Most of those groups (if not all?) had previously been revealed by the platforms or by news reports. But the extent to which the Russians went to cover their trails is more revealing.

To hide their Russian identities and ORGANIZATION affiliation, Defendants and their co-
conspirators--particularly POLOZOV and the IT department--purchased
space on computer servers located inside the United States in order to set up virtual private
networks Defendants and their co-conspirators connected from Russia to the U.S.-based infrastructure by way of these VPNs and conducted activity inside the United States?
including accessing online social media accounts, opening new accounts, and communicating with
real U.S. persons--while masking the Russian origin and control of the activity.

Defendants and their co-conspirators also registered and controlled hundreds of web-based
email accounts hosted by U.S. email providers under false names so as to appear to be U.S. persons
and groups. From these accounts, Defendants and their co-conspirators registered or linked to
online social media accounts in order to monitor them; posed as U.S. persons when requesting
assistance from real U.S. persons; contacted media outlets in order to promote activities inside the
United States; and conducted other operations, such as those set forth below.

Use of Stolen U.S. Identities

In or around 2016, Defendants and their co-conspirators also used, possessed, and
transferred, without lawful authority, the social security numbers and dates of birth of real U.S.
persons without those persons' knowledge or consent. Using these means of identification,
Defendants and their co-conspirators opened accounts at PayPal, a digital payment service
provider; created false means of identification, including fake driver's licenses; and posted on
social media accounts using the identities of these U.S. victims. Defendants and their co-conspirators also obtained, and attempted to obtain, false identification
documents to use as proof of identity in connection with maintaining accounts and purchasing
advertisements on social media sites.

This was not just some run-of-the-mill "pretend to be Americans," this was a hugely involved process to make it very difficult to determine that they were not Americans.

I've seen some people online claiming that this shows why the platforms have to take more responsibility for who is using their platform:

While you read the Mueller #Indictment remember the tech CEO mantra: “We don’t want to be the arbiters of truth.” These platforms were used *exactly as they were designed to be used*. Here we are a year later, and still no accountability or governance. https://t.co/Y1IgtRSVqmpic.twitter.com/s2mOnp0EFc

But my read on it is exactly the opposite. It shows just how ridiculous such a demand is. Would any of us be using these various services if we were all forced to go through a detailed background check just to use a social media platform? That seems excessive and silly. Part of the reason why these platforms are so useful and powerful in the first place is that they're available for nearly everyone to use with little hurdles in the way. That obviously has negative consequences -- in the form of trolling and scams and malicious behavior -- but there's also a ton of really good stuff that has come out of it.

We should be pretty cautious before we throw away all of the value of these platforms just because some people used them for nefarious purposes. People are always going to be able to hide their true intentions from the various platforms -- and the response to that shouldn't be "put more blame on the platforms" -- it should be a recognition of why it's so silly to blame the tools and services for the actions of the users.

Yes, we should be concerned about foreign attempts to influence our elections (while noting that the US, itself, has a long history of doing the same damn thing in other countries -- so this is a bit of blowback). But blaming the technology platforms the Russians used seems to be totally missing the point of what happened -- and risks making the internet much worse for everyone else.

from the do-as-we-say,-not-as-we-do dept

We've noted for some time how Chinese hardware vendor Huawei has been consistently accused of spying on American citizens without any substantive, public evidence. You might recall that these accusations flared up several years ago, resulting in numerous investigations that culminated in no hard evidence whatsoever to support the allegations. We're not talking about superficial inquiries, we're talking about eighteen months, in-depth reviews by people with every interest in exposing them. One anonymous insider put it this way in the wake of the last bout of hysteria surrounding the company:

"We knew certain parts of government really wanted” evidence of active spying, said one of the people, who requested anonymity. “We would have found it if it were there."

Never mind that almost all U.S. network gear is made in (or comprised of parts made in) China. Never mind that years of reports have shown the United States spies on almost everyone, constantly. Never mind that reports have emerged that a lot of the spy allegations often originate with Huawei competitor Cisco, which was simply concerned with the added competition. Huawei is a spy. We're sure of it. And covert network snooping is bad. When China does it.

Worries over Huawei bubbled up again recently when the U.S. government pressured both AT&T and Verizon to kill off plans to sell Huawei phones here in the States. It should be noted that Huawei phones are already available here, and the company has worked with several U.S. companies to gain a foothold in the U.S. market (like when it partnered with Google on the Nexus 6P). It should also probably be noted that in the modern era, you can't really differentiate between where a company like AT&T ends and the NSA begins, given the telco's extreme enthusiasm for spying on American citizens itself.

This week, hysteria concerning Huawei again reached a fevered pitch, as U.S. intelligence chiefs, testifying before Congress over Russian hacking and disinformation concerns, again proclaimed that Huawei was spying on American citizens and their products most assuredly should not be used:

"At the hearing, FBI Director Chris Wray testified, “We’re deeply concerned about the risks of allowing any company or entity that is beholden to foreign governments that don’t share our values to gain positions of power inside our telecommunications networks." Purchasing Huawei or ZTE products, Wray added, “provides the capacity to maliciously modify or steal information. And it provides the capacity to conduct undetected espionage."

Which values would those be, exactly? Would it be the values, as leaked Edward Snowden docs revealed, that resulted in the NSA hacking into Huawei, stealing source code, then attempting to plant its own backdoors into Huawei products? Or perhaps it's the values inherent in working closely with companies like AT&T to hoover up every shred of data that touches the AT&T network and share it with the intelligence community? Perhaps it's the values inherent in trying to demonize encryption, by proxy weakening security for everyone?

News outlets, semi-oblivious to their own nationalism, quickly ignored the NSA's hypocrisy when it comes to worrying about values and regurgitated the intel chiefs' concerns. Few could also be bothered to note that numerous investigations have culminated in bupkis, the NSA has routinely and consistently been caught doing precisely what they accuse Huawei of, or that American companies tend to drum up hysteria on this front simply because they're afraid of competition (protectionism we routinely and justly accuse China of).

Focusing on Huawei also seems semi-myopic, given the fact that Chinese hardware can already be found in an absolute ocean of products available here in the States, many of which are made by U.S. hardware vendors. It also ignores the fact that if somebody really wants to hack us, all they need to do is spend five seconds hunting down one of a million poorly secured internet of broken things devices, which create millions of new easily-exploited attack vendors annually in businesses and residences nationwide.

None of this is to say it's impossible that Huawei has helped the Chinese government spy, much like our own companies here in the States. But if you're going to discuss this subject, you can't have an honest conversation without highlighting our own hypocrisy on this front, given it's abundantly clear that we're perfectly OK with unethical behavior, backdoors, and spying with negligible oversight and accountability -- provided the United States is the one doing it.

from the step-aside,-Constitution! dept

To keep itself from being held liable for inmate deaths, San Diego County (CA) has decided to target the journalist who exposed them. Kelly Davis, along with the EFF's Dave Maass, used public records requests and investigative journalism to detail 60 deaths in the county's five jails, which occurred over the course of five years. The death rate in San Diego jails was consistently higher than those of comparably-sized systems. In fact, the death rate was higher than that of the 10 largest jail systems in the country. Documents showed almost a third of those were preventable.

But when a lawsuit was filed by the wife of an inmate who died in a San Diego County jail, the county argued there was no negligence. The presiding judge disagreed, citing Davis and Maass' journalism.

The Marine’s widow is suing the county, claiming the jail system didn’t protect Nesmith from himself despite multiple warning signs. A judge allowed the case to go forward, noting that news coverage could “plausibly” have given the county a heads-up of “a pattern of deliberate indifference” to suicidal inmates.

Ok, if that's the way you want to play this, said the county in its next filing. If these reports should have given us heads up on negligence in county jails, let's see if we can't dispute the accuracy of the reports. The county has asked the judge to force Kelly Davis to turn over everything she has on jail deaths, including documents and interviews that haven't been published.

Randy Dotinga of the Voice of San Diego explains what the county is really trying to do with this discovery demand:

Let’s dig beyond the legalese into what the county is actually saying here:

So you’re suggesting we should have known that we had a big problem with jail suicides because of those “60 Dead Inmates” headlines and done something? Maybe those stories were wrong, and we didn’t need to know about a problem we didn’t actually have! We can’t be bothered to run the numbers ourselves, so we’ll force the reporter to do it for us.

This part is unsaid: This will also suck up hours of depositions and cost everyone a bundle. Luckily, we’re taxpayer-funded! And hey, we’ll learn who squealed to the reporter too. Bonus!

This is an obvious attempt to intimidate a journalist who exposed misconduct and malfeasance. The county has plenty of previous reporting it could dig into, as well as unfettered access to jail records and jail employees. Instead, it's dragging the journalist to court and attempting to unmask sources. The county is trying to bypass First Amendment protections and the state's journalist shield laws to skirt liability in jailhouse deaths.

Fortunately, Davis has pro bono representation pushing back against the county's demands. It appears the county didn't think the journalist would stand up for her rights. So, it's changed its arguments. Instead of bypassing Constitutional protections, the government is hoping to get every damning piece of journalism booted from the ongoing civil rights lawsuit. The new "deal" proposed by the county would be to rescind its demands for sources and source material from Davis if the plaintiff agrees to never bring up Davis' reporting during the lawsuit. One way or another, the county is hoping to bury inconvenient facts. The widow bringing the lawsuit has refused this deal, meaning the reporting is still in play and the demand for Davis to reveal everything she's collected still an ongoing concern.

For now, Davis won't have to turn over anything. As Voice of San Diego reports, the judge has ruled against the county's request. The county may appeals this order, but for now, Davis won't have to produce documents or testify.

As Dotinga points out, this is nothing more than intimidation from government reps who think they can push their constituents around.

This is how San Diego is handling problems with its law enforcement officers. It's punishing citizens for speaking up, protesting, engaging in journalism, or being the victims of sexual assault by people in positions of power. Every single aspect of this is shameful, but having a sense of shame means admitting the county has a problem (well, several of them). County reps aren't paid to admit fault. But they shouldn't be collecting paychecks for violating the US Constitution and state law, either.

from the it's-not-tech-v.-hollywood dept

Just last week we announced our new site EveryoneCreates.org, in which we showcase stories of people who rely on the open internet and various internet platforms to create artwork of all kinds -- from music to books to movies to photographs and more. It appears that we're not the only ones to be thinking about this. The Re:Create coalition has just now released some fantastic economic research about the large and growing population of people who use internet platforms to create and to make money from their creations. It fits right in with the point that we made, that contrary to the RIAA, MPAA and its front groups like "Creative Future," the internet is not harming creators, it's enabling them by the millions (and allowing them to make much more money as well).

Indeed, the report almost certainly significantly undercounts the number of content creators making money on the internet these days, as it only explores nine platforms: Amazon Publishing, eBay, Etsy, Instagram, Shapeways, Tumblr, Twitch, WordPress and YouTube. Those are all great, and probably cover a decent subset of creators and how they make money -- but it leaves off tons of others, including Kickstarter, Patreon, IndieGogo, Wattpad, Bandcamp, Apple, Spotify and many other platforms that have increasingly become central to the way in which creators make their money. Still, even with this smaller subset of creative platforms, the study is impressive.

14.8 million people used those platforms to earn approximately $5.9 billion in 2016.

Let's repeat that. The internet -- which some legacy entertainment types keep insisting are "killing" content creators and making it "impossible" to make money -- enabled nearly 15 million people to earn nearly $6 billion in 2016. And, again, that doesn't even include things like Kickstarter or Patreon (in 2016 alone, Kickstarter had $580 million in pledges...). In short, just as we've been saying for years, while those who rely on the old legacy gatekeeper system of waiting until you're "discovered" by a label/studio/publisher and then hoping they'll do all the work to make you rich and famous, maybe that's a bit more difficult these days. But, for actual creators, today is an astounding, unprecedented period of opportunity.

This does not mean that everyone discussed here is making a full-time living. Indeed, the report notes clearly that many people are using these platforms to supplement their revenue. But they're still creating and they're still making money off of their creations -- something that would have been nearly impossible not too long ago. And, just as the report likely undercounts the size of this economy due to missing some key platforms, it also misses additional revenue streams even related to the platforms it did count:

It is impossible to determine an average income for members of the new creative economy, because
earnings vary so widely for each platform. As previously stated, this analysis includes only a single source of
income for each of the nine platforms. For instance, based on the current data, we include a YouTube star’s
earnings from YouTube but not revenues as influencers or advertisements on other social media platforms.

Also interesting is how the report found that creators are spread all over the US. While California, New York and Texas have the most creators, even those with the "smallest" numbers of creators (Wyoming and the Dakotas) still had tens of thousands of people using these platforms to make money. And, yes, in case you're wondering, the study excluded big time stars like Kim Kardashian using platforms like Instagram to make money, focusing instead on truly independent creators.

This is especially important, as it's coming at a time when the RIAA, MPAA and their friends continue their nonsensical claims that these very same internet platforms are somehow "harming" content creators, and that laws need to change to make it harder for everyday people to use these platforms to express their artwork and to make money off of it. It's almost as if those legacy gatekeepers don't like the competition or the fact that people are realizing they don't need to work with a gatekeeper to create and to make money these days.

So, once again, it's time to dump the ridiculous myth of "tech v. content." That's not true at all. As this report shows, these tech platforms have enabled many millions of people to earn billions of dollars that's only possible because they're open platforms that get past the old gatekeeper system.

from the good-deals-on-cool-stuff dept

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from the this-is-bad dept

Just earlier this week we noted that a judge easily laughed Playboy's silly lawsuit out of court because merely linking to infringing content is not infringing itself. But a judge in New York, Judge Katherine Forrest, has ruled on a different case in a manner that is quite concerning, which goes against many other court rulings, and basically puts some fundamental concepts of how the internet works at risk. It's pretty bad. In short, she has ruled that merely embedding content from another site can be deemed infringing even if the new site is not hosting the content at all. This is wrong legally and technically, and hopefully this ruling will get overturned on appeal. But let's dig into the details.

The case involved a photographer, Justin Goldman, who took a photograph of quarterback Tom Brady on Snapchat. Somehow that image made its way from Snapchat to Reddit to Twitter. The photo went a bit viral, and a bunch of news organizations used Twitter's embed feature to show the tweet and the image. Goldman sued basically all the news publications that embedded the tweet -- including Breitbart, Vox, Yahoo, Gannett, the Boston Globe, Time and more. Now, multiple different courts around the country have said why this should not be seen as infringing by these publications. It's generally referred to as "the server test" -- in which to be direct infringement, you have to host the image yourself. This makes sense at both a technical and legal level because "embedding" an image is no different technically than linking to an image. It is literally the same thing -- you put in a piece of code that points the end user's computer to an image. The server at no point hosts or displays the image -- it is only the end user's computer. In the 9th Circuit, the various Perfect 10 cases have established the server test, and other courts have adopted it or similar concepts. In the 7th Circuit there was the famous Flavaworks case, where Judge Posner seemed almost annoyed that anyone could think that merely embedding infringing content could be deemed infringing.

But Judge Forrest has decided to carve a new path on this issue in Southern New York, teeing up (hopefully) an opportunity for the 2nd Circuit to tell her why she's wrong. Even more troubling, she actually relies on the awful Aereo "looks like a duck" test to come to this conclusion. Let's dig into her reasoning. The key issue here is the exclusive right to "display" a work under copyright, known as 106(5) under copyright law.

It's also important to note that this ruling is just at the summary judgment stage, and doesn't mean that the various publications will be found to have infringed -- it just means that the court is letting the case go forward, meaning that the various publications might now raise various defenses as to why their embedding is not infringing. It's still concerning, because given the "server test" in other jurisdictions, such a case would easily be tossed on a motion to dismiss or summary judgment because there's no legitimate claim of copyright infringement if no direct infringement can be shown. But here, Judge Forrest argues that because an embed leads an end user's computer to display an image, that somehow makes the publisher who included the embed code possibly liable for infringing the display right. Because it looks like a duck.

This is not a new issue by any means. I found a story from over a decade ago in which I warned that we'd see a lot more stupid lawsuits about embedding content from platforms, and have to admit I'm a bit surprised we haven't seen more. The reason that's the case is almost certainly because of the reliance of many courts on the server test, leading many to realize such an argument is a non-starter. Until now.

Forrest basically says that even though the image never touches the publisher's server, and the only thing the publisher is doing is linking to an image in a manner that makes the end-user's browser grab that image from another location and display it, it still counts as infringement -- because of the Aereo ruling. If you don't recall, Aereo involved a creative (if technically stupid) method for streaming over-the-air broadcast TV to users by setting up many local antennas that were legally allowed to receive the signals, and then transmitting them over the internet (which is also legal). But, the Supreme Court came up with a brand new test for why that's not allowed -- which we've called the "looks like a duck" test. The ruling found that because Aereo kinda looked like cable to the end user, the technical rigamarole in the background to make it legal simply doesn't matter -- all that matters is how things looked to the end user. Forrest argues the same is true here:

Moreover, though the Supreme Court has only weighed in obliquely on the issue, its language in Aereo is instructive. At heart, the Court’s holding eschewed the notion that Aereo should be absolved of liability based upon purely technical distinctions—in the end, Aereo was held to have transmitted the performances, despite its argument that it was the user clicking a button, and not any volitional act of Aereo itself, that did the performing. The language the Court used there to describe invisible technological details applies equally well here: “This difference means nothing to the subscriber. It means nothing to the broadcaster. We do not see how this single difference, invisible to subscriber and broadcaster alike, could transform a system that is for all practical purposes a traditional cable system into a ‘copy shop that provides patrons with a library card.’”

We were worried about the wider impact of the Aereo "duck" test -- and people told us it wasn't that big a deal. Indeed, until this ruling, Aereo hasn't been (successfully) cited very often. Many thought that the very specific nature of Aereo might limit that precedent to a very specific situation involving cable TV. This ruling suggests that the silly "duck" test may be spreading. And that's bad, because it's based on ignoring what's actually happening at the technological level, in which the technology may be designed specifically to not violate any of the exclusive rights of copyright law.

Also, it should worry people greatly that courts are using this "we don't care about what's actually happening, we just care what it looks like" standard for judging infringement. Because to infringe on a copyright requires a very specific set of facts. And here (as with Aereo) the court is saying "we don't care about whether or not it actually violates one of the exclusive rights granted under copyright, we only care if it looks like it infringes." That's... a huge change in the law, and it's not at all how copyright law has been judged in the past. It can and will be used to hamstring, limit, or destroy all sorts of unique and useful technological innovations.

Forrest also tries to distinguish this ruling from the Perfect 10 cases and the Flava Works case -- even admitting that other 2nd circuit courts have used the server test. But, she says, they were all different -- doing things like only using the server test for the distribution right, but not the display right, or not really endorsing the server test and ruling on other reasons.

Forrest also points to a trademark case that involved an embedded image which was found to be infringing -- but that's entirely different. The rules for trademark infringement are completely different than the exclusive rights related to copyright. With trademark, it's not as specific, and the use of someone else's logo broadly (as happened in the case cited) could easily be infringing on the trademark, but that doesn't get to the copyright question which involves much more carefully limited rights.

But, most troulbing of all, Forrest argues that the server test... is just wrong:

The Court declines defendants’ invitation to apply Perfect 10’s Server Test for two reasons. First, this Court is skeptical that Perfect 10 correctly interprets the display right of the Copyright Act. As stated above, this Court finds no indication in the text or legislative history of the Act that possessing a copy of an infringing image is a prerequisite to displaying it. The Ninth Circuit’s analysis hinged, however, on making a “copy” of the image to be displayed—which copy would be stored on the server. It stated that its holding did not “erroneously collapse the display right in section 106(5) into the reproduction right in 106(1).” Perfect 10 II, 508 F.3d at 1161. But indeed, that appears to be exactly what was done.

The Copyright Act, however, provides several clues that this is not what was intended. In several distinct parts of the Act, it contemplates infringers who would not be in possession of copies—for example in Section 110(5)(A) which exempts “small commercial establishments whose proprietors merely bring onto their premises standard radio or television equipment and turn it on for their customer’s enjoyment” from liability. H.R. Rep. No. 94-1476 at 87 (1976). That these establishments require an exemption, despite the fact that to turn on the radio or television is not to make or store a copy, is strong evidence that a copy need not be made in order to display an image.

Except... that's still very different. That's still a case where the "small commercial establishments" are showing the work. In this case -- and the very reason why the server test is so important -- the content in question is never on the publisher's premises or server. It only appears on the end user's browser, because that browser goes and fetches it.

Even more bizarre, Forrest argues that Perfect 10 and the server test are different because the image is displayed on the end user's computer:

In addition, the role of the user was paramount in the Perfect 10 case—the district court found that users who view the full-size images “after clicking on one of the thumbnails” are “engaged in a direct connection with third-party websites, which are themselves responsible for transferring content.” Perfect 10 I, 416 F. Supp. 2d at 843.

In this Court’s view, these distinctions are critical.

While this doesn't involve the end user "clicking" first to get the display, it's really no different. It is the end user who has the allegedly infringing content displayed on their computer, not the publisher. A direct connection is made between the end user and the hosting provider (in this case Twitter). The publisher never touches the actual content. Yet, Forrest argues that they can be direct infringers.

That's... wrong.

Despite the fact that EFF and others warned the court that this ruling would would massively upset the way the internet works, Forrest doesn't seem to believe them (or care)... because maybe fair use will protect people.

The Court does not view the results of its decision as having such dire consequences. Certainly, given a number as of yet unresolved strong defenses to liability separate from this issue, numerous viable claims should not follow.

In this case, there are genuine questions about whether plaintiff effectively released his image into the public domain when he posted it to his Snapchat account. Indeed, in many cases there are likely to be factual questions as to licensing and authorization. There is also a very serious and strong fair use defense, a defense under the Digital Millennium Copyright Act, and limitations on damages from innocent infringement.

That's... also wrong. Yes, publishers may be protected by fair use or other defenses. But fair use is much harder to get a ruling on at an early (summary judgment) stage in a case (a few courts are starting to allow this, but it's not all that common). Having the server test be good law would prevent a flood of these kinds of cases from being filed. Without it, people can troll media sites that embed tweets and go after them, leading to long and costly litigation, even if they have strong fair use defenses. Also, the reference above to releasing the image "into the public domain" is nonsensical. No one is arguing that the image was in the public domain. It is clearly covered by copyright.

Given what a total and complete mess this ruling will cause on the internet should it stand, I fully expect a robust appeal. The 2nd circuit can be a mixed bag on copyright, but often does a pretty good job in the end. One hopes that the 2nd circuit reverses this ruling, endorses the server test, and keeps the internet working as it was designed -- where embedding and linking to content doesn't magically make one liable for infringement.

from the not-particularly-shocking dept

If you watched FCC boss Ajit Pai's rushed repeal of net neutrality there really shouldn't be any question about where Pai's loyalties lie, and it certainly isn't with smaller companies, healthy competition, transparency, openness, innovation, or American consumers. The agency head repeatedly lied about the justifications for the repeal, casually using fabricated data to justify what may just be the least popular policy decision in this history of modern technology. Pai's fealty to giant monopolies runs so deep, his agency now just directs reporters to lobbying talking points when they question the flimsy logic propping up the repeal.

"Last April, the chairman of the Federal Communications Commission, Ajit Pai, led the charge for his agency to approve rules allowing television broadcasters to greatly increase the number of stations they own. A few weeks later, Sinclair Broadcasting announced a blockbuster $3.9 billion deal to buy Tribune Media — a deal those new rules made possible.

By the end of the year, in a previously undisclosed move, the top internal watchdog for the F.C.C. opened an investigation into whether Mr. Pai and his aides had improperly pushed for the rule changes and whether they had timed them to benefit Sinclair, according to Representative Frank Pallone of New Jersey and two congressional aides."

Sinclair's $3.9 billion acquisition of Tribune Media has already faced broad, bipartisan opposition by those concerned that the merger will dramatically damage both competition and opinion diversity across countless markets nationwide. The Sinclair Tribune tie up would give Sinclair ownership of more than 230 local broadcast stations around the nation, allowing it to reach 72% of the public with "reporting" frequently lamented as grotesquely distorted on a good day.

Sinclair's latest merger couldn't occur without Pai's decision to gut numerous media consolidation rules over the last few months, including several decades old rules specifically designed to prevent any one company from unfairly dominating a media market and crushing local competition. Unsurprisingly, consumer groups were quick to seize on the news suggesting that the agency should suspend its review of the merger until the Inspector General inquiry is complete:

"Until the inspector general’s investigation is complete, Chairman Pai and any other FCC staff subject to this inquiry should recuse themselves from all dealings related to Sinclair’s proposed takeover of Tribune Media," Free Press Senior Counsel Jessica J. González said in a statement. "If the investigation finds that Pai or any other FCC staff did indeed let their own bias and favoritism shape decisions related to the deal, they must not be permitted to vote on this matter and they should be subject to other appropriate ethics-review processes."

Of course if you're familiar with Pai's work, you know that won't be happening, and in Pai's ideologically-blinded brain this will all be dismissed as the errant rantings of partisans. But again, opposition to this deal is fairly uniform across the spectrum. Conservatives don't like it because they realize Sinclair is going to squeeze smaller media outlets out of the equation unfairly. Liberals don't like it because they know Sinclair is going to fill the airwaves with more nonsense just as we're trying to get a hold on problems inherent in foreign influence, disinformation, and discourse quality.

Regardless, Pai's going to have a very busy few years. He's already facing several different inquiries into why his agency made up DDOS attacks and turned a blind eye to identity theft as part of an apparent attempt to downplay massive public opposition to his policies. He's also facing several law enforcement inquiries (one of which he's actively blocking) and numerous lawsuits into his agency's blatant disregard of the public interest. And while this particular inquiry may not conclude that Pai technically broke the law or violated agency rules, it's pretty hard to act confused about where Pai's loyalties truly lie.